10 September 2019 will mark an important date in the way hearings are conducted in family law proceedings. On 10 March 2019 the Family Law Act 1975 incorporated section 102NA banning personal cross-examination in Family Law proceedings if allegations of family violence have been raised. This means that self-represented litigants will no longer be able to personally examine their ex-partner.
The amendment is consistent with minimising victims of family violence to be re-exposed or re-traumatised when faced with their alleged perpetrators. It also increases the opportunity for family violence victims with the ability to provide clear evidence.
The ban will be automatic if:
- Either party has been charged with, or has been convicted of an offence involving violence or a threat of violence to the other party.
- A family violence order applies to both parties.
- An injunction for the personal protection of either party is directed against the other party under section 68B or 114 of the Family Law Act.
In other circumstances the Court may use its discretion to impose the ban if necessary even if no application is made by a party or Independent Children’s Lawyer.
This change does not mean that self-represented litigants will not have the opportunity to have other parties cross-examined in their matter. It does mean that the cross-examination of both parties must be conducted by a legal practitioner. Self-represented litigants will be required to hire a private lawyer or apply to Legal Aid NSW to be represented at their hearing (usually in a final hearing). This is under the Commonwealth Family Violence and Cross-Examination of Parties Scheme (the Scheme). Conditions will apply to legal representation under the Scheme and ongoing representation is not automatic.
The incorporation of this section into the Family Law legislation is a turning point in recognising the impact that family violence has on victims and limiting further exposure during the court process. An information sheet prepared by Legal Aid NSW is available on their website.
If you require more information on the above article contact Nevine Youssef on (02) 4626 5077 or nyoussef@marsdens.net.au
The contents of this publication are for reference purposes only. This publication does not constitute legal advice and should not be relied upon as legal advice. Specific legal advice should always be sought separately before taking any action based on this publication.
